Privacy and Injunctions - Evidence - Parliament

The Rt Hon. the Lord Neuberger of Abbotsbury and Mr Justice Tugendhat—Oral evidence
(QQ 486–535)
Lord Neuberger of Abbotsbury: Dealing with your specific point and thinking about a
case where, on the one hand, somebody is saying, “My privacy will be infringed if this
newspaper report is allowed to proceed”, and the newspaper is saying, “We want to report
it”, section 12 gives you a steer, as it were. Although I have not had to decide a case on
section 12, and, as far as I can recall, I have not had to decide an appeal which involved a
challenge based on it, in almost all the judgments I have seen where section 12 would be in
play it is addressed by the judge and taken into account. It is more than a tie-breaker; you
look to see what is likely to happen at trial. Almost inevitably, there would have been cases
where it was a decisive factor, but I would not have thought there would be many.
As to what you could do to strengthen it, as Mr Justice Tugendhat says, it is not for
us to say as judges. Once you have given section 12 that degree of significance, other than
saying in brackets, “We really mean it”, it is quite difficult to know how you could strengthen
it.
Q507 Baroness Bonham Carter of Yarnbury: I believe that the question I
intended to ask has been answered, namely the conundrum of how judges determine when a
publication is in the public interest and distinguish it from a publication which is interesting
to the public. I believe you have covered this area.
Mr Justice Tugendhat: The best way is to see the cases in which we have actually
done it. Your legal adviser will point you to them, if he has not already done so. I have had
to do it many times. I had to do it over journalistic sources in Mersey Care NHS Trust v
Ackroyd [2006] EWHC 107 (QB) ()& February 2006) in relation to the hospital where
Mr Brady is detained; I had to do it in the case of Flood v Times Newspapers heard in the
Supreme Court in October this year; I had to do it in one of Sir Fred Goodwin’s privacy
applications, for which permission to appeal was sought from the Court of Appeal. The best
thing is to see how we do it.
Q508 Baroness Corston: The Master of the Rolls has touched on this, as has Mr
Justice Tugendhat. Perhaps I may address this to him. Is there any justification for the
argument that the public is entitled to know about the weaknesses of their role models?
Lord Neuberger of Abbotsbury: I suppose that in some ways it depends on what you
mean by “role model”. In one sense, you can say that at the most fundamental level freedom
of speech means you have the right to say anything within limits. The example that is always
given of the limit is shouting “Fire!” in a crowded auditorium or cinema. In relation to role
models, I would want to be very careful. There is at least one case involving that issue that
may come before the Court of Appeal. I am sorry to be a coward, but I think it is my duty to
wait for the case before I say anything; otherwise, I will disqualify myself from hearing it. I
simply say it is an interesting point.
Q509 Baroness Corston: That is probably why I addressed it to Mr Justice
Tugendhat.
Lord Neuberger of Abbotsbury: I am sorry. We both thought you were asking me.
Mr Justice Tugendhat: Like so many terms in this debate, one has to be careful what
one is talking about. There are some job descriptions where the person or persons, or the
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